The Indian Government Opposes Same-Sex Marriage Plea in Supreme Court
The Indian government has recently filed an affidavit in the Supreme Court opposing the petitions filed by gay couples seeking recognition of same-sex marriage under law. The affidavit states that the Indian family concept involves a biological man and woman with children born out of such a union, and living together as partners and having a sexual relationship by same-sex individuals is not comparable to this concept.
The government's affidavit was filed in response to a batch of petitions seeking that the right to marry a person of one’s choice should extend to LGBTQIA+ citizens as well. One of the petitions was filed by Supriyo Chakraborty and Abhay Dang, two gay men living in Hyderabad who have been a couple for almost 10 years. Despite having contracted COVID-19 during the second wave of the pandemic and celebrating the ninth anniversary of their relationship with a wedding-cum-commitment ceremony, they do not enjoy the rights of a married couple.
The Indian government argued that the parties entering into marriage create an institution having its own public significance as it is a social institution from which several rights and liabilities flow. Seeking a declaration for solemnization / registration of marriage has more ramifications than simple legal recognition. Additionally, the government underlined that there can be no fundamental right for recognition of a particular form of social relationship.
"While it is certainly true that all citizens have a right to association under Article 19, there is no concomitant right that such associations must necessarily be granted legal recognition by the State. Nor can the right to life and liberty under Article 21 be read to include within it any implicit approval of same-sex marriage," the government said.
The Indian government further clarified that although same-sex relations are not unlawful, the state only recognizes heterosexual relationships for the mode of marriage. "The State does not recognize these other forms of marriages or unions or personal understandings of relationships between individuals in a society, but the same are not unlawful," the affidavit stated.
The Centre in its affidavit also contended that the registration of marriage of same-sex persons will result in the violation of existing personal as well as codified law provisions such as ‘degrees of prohibited relationship,’ ‘conditions of marriage,’ and ‘ceremonial and ritual requirements’ under personal laws governing the individuals. The intent of the Legislature was limited to the recognition of a legal relationship of marriage between a man and a woman, represented as a husband and wife.
The government's affidavit was drafted by Advocates Kanu Agrawal and Gaurang Bhushan and settled by Solicitor General of India Tushar Mehta.
In conclusion, the Indian government's affidavit highlights the challenges that same-sex couples face in India when it comes to legal recognition of their relationships. While the Supreme Court will ultimately decide on the petitions filed by gay couples seeking recognition of same-sex marriage, the government's stance has caused concern among LGBTQIA+ activists who argue that denying same-sex couples the right to marry is a violation of their fundamental rights under the Indian Constitution.